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2008

Louis B. Sohn and the Law of the Sea

John E. Noyes
California Western School of Law, jnoyes@cwsl.edu

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John E. Noyes, Louis B. Sohn and the Law of the Sea, 16 WILLAMETTE J. INTL L. & DISP. RESOL. 238 (2008).

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 LOUIS B. SOHN AND THE LAW OF THE SEA

JOHN E. NOYES*

I. Introduction ................................... ..... 238

II. Louis B. Sohn's Roles and Character ............................. 238
III. World Peace, the Law of the Sea, and an Integrated Vision of International
Law ............................... ............... 240
IV. Louis Sohn and the Making of the Modem Law of the Sea.......................242
V. Conclusion .................................. ...... 250

I. INTRODUCTION

Louis B. Sohn significantly influenced the modern law of the sea, as

he did other areas of international law. Though a positivist immersed in
the human history and process of developing the law, Louis was also a
visionary who saw international law as a noble endeavor that could
improve or even transform the world. Part I of this essay describes
Louis's various roles and character. Part II briefly sets out his vision and
his sense of the interconnectedness between the law of the sea and other
areas of international law. Part III analyzes how Louis saw the
international lawmaking process, with which he sought to implement his
vision.

II. LouIs B. SoHN's ROLES AND CHARACTER

Professor Louis B. Sohn (1914-2006) was one of the preeminent
international law scholars of the twentieth century. His work helped
create the fields of United Nations law, international environmental law,
and human rights law. In 2009, the 400th anniversary of Grotius's De
Mare Liberum, we can't say Louis Sohn created the field of the law of
the sea, whose roots are indeed ancient. But Louis helped us understand,

* Roger J. Traynor Professor of Law, California Western School of Law; President, American
Branch of the International Law Association. Thanks to Erik Franckx and Mark W. Janis for
their helpful comments on a draft of this essay.

238
2008]1 LOUIS B. SOHN 239

and helped shape, the modern law of the sea. He recognized the multiple
conflicting uses and limited resources of the oceans today, and examined
how international law, international courts, and other international
organizations could address these issues.
Louis filled many roles in addition to that of scholar. He devoted a
tremendous amount of time and energy to his students at Harvard Law
School (1946-1981; Bemis Professor, 1961-1981) and the University of
Georgia School of Law (Woodruff Professor, 1981-1991), before
finishing his career as Distinguished Research Professor at The George
Washington University Law School. He led nongovernmental
organizations, serving as Chair of the American Bar Association's
Section of International Law (1992-1993), President of the American
Society of International Law (1988-1990), and for many years Vice
President of the American Branch of the International Law Association.
He worked as a U.S. government lawyer, a co-rapporteur of the
Restatement (Third) of the Foreign Relations Law of the United States,
an advocate before the International Court of Justice, an informal advisor
to governments and international organizations, and an international
negotiator (notably at the Third United Nations Conference on the Law
of the Sea (UNLCOS III)). All of his contributions reflected his passion
and his vision about how international law could shape a more peaceful
and a more just world.
A list of Louis Sohn's accomplishments cannot capture his
character. I like Dan Magraw's summary: "Famously described as 'the
Brain who walks like a Man[,]' . . . Louis's vision, knowledge,
flexibility, energy, persistence, humility, extraordinary attention to detail,
and dedication to the rule of law were legendary around the world."' His
influence on his students and professional associates was profound.
During UNCLOS III, Louis's knowledge, experience, and tenacity made
him an invaluable resource for the U.S. delegation in particular, and for
the Conference as a whole. The dispute settlement provisions in the
Law of the Sea Convention were in large measure due to his efforts. 2
I never took a class from Louis, nor did I know him during
UNCLOS III. But he certainly influenced me. I came to the law of the

I. Daniel Barstow Magraw, Louis B. Sohn, Architect of the Modern InternationalLegal

System, 48 HARV. INT'L L.J. 1, 2 (2007).
2. Elliot Richardson, Dispute Settlement Under the Convention on the Law of the Sea: A
Flexible and Comprehensive Extension of the Rule of the Law to Ocean Space, in
CONTEMPORARY ISSUES IN INTERNATIONAL LAW: ESSAYS IN HONOR OF LOUIS B. SOHN 149
(Thomas Buergenthal ed., 1984); Andreas J. Jacovides, Comment, Peaceful Settlement of
Dispute in Ocean Conflicts: Does UNCLOS III Point the Way?, 46 LAW & CONTEMP. PROBS.,
Spring 1983, at 201.
240 WILLAMETTE J. INT'L L. & DISPUTE RESOLUTION [Vol. 16:238

sea after the end of UNCLOS III, when law of the sea experts were
working to revise the Part XI seabed mining regime, so as to encourage
the United States and other industrialized states to ratify or accede to the
1982 Law of the Sea Convention. 3 I learned from Louis's example about
how to couple historical developments with efforts to address current
problems. At one of the first law of the sea conferences I attended, for
example, Louis presented a detailed, historically grounded, and creative
4
proposal integrating a revision of Part XI into the Convention regime.
Louis's passion for learning was impressive. I often recall his
admonition to inject at least one new nugget-one new insight or
previously unearthed research discovery-into each presentation.
Louis's intellectual curiosity and his desire to learn were insatiable.
I found Louis's encouragement of my early forays into the law of
the sea truly remarkable. After all, I was a neophyte in the field, and we
shared no preexisting personal or professional connections. He gently
corrected my phrasings in some ABA law of the sea reports I had worked
on,5 and generously shared his time to talk with me as I prepared one of
my earliest talks about dispute settlement and the law of the sea. Such
conversations eventually led to our collaboration, late in Louis's life, on
Cases and Materials on the Law of the Sea.6 During work on that book,
I came to appreciate anew Louis's deep knowledge about the law of the
sea, and his passion to share his knowledge and vision.

III. WORLD PEACE, THE LAW OF THE SEA, AND AN INTEGRATED VISION
OF INTERNATIONAL LAW

What was Louis's vision? What values motivated his work? An

early expression of Louis Sohn's idealism-his belief that international

3. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397
[hereinafter LOS Convention].
4. Louis B. Sohn, Procedural Options for Amending Part XI of the United Nations
Convention on the Law of the Sea, in CENTER FOR OCEANS LAW AND POLICY FIFTEENTH
ANNUAL SEMINAR: ISSUES IN AMENDING PART XI OF THE LOS CONVENTION 71 (M.H.
Nordquist ed., 1991).
5. A.B.A. Section of Int'l Law & Practice, Report to the House of Delegates, UN
Convention on the Law of the Sea, 29 INT'L LAW. 252 (1995), reprinted in THE UNITED
NATIONS AT 50: PROPOSALS FOR IMPROVING ITS EFFECTIVENESS 161 (John E. Noyes ed.,
1997); A.B.A. Section of Int'l Law & Practice, Report to the House of Delegates, UN
Convention on the Law ofthe Sea, 24 INT'L LAW. 868 (1990).
6. Louis B. SOHN & JOHN E. NOYES, CASES AND MATERIALS ON THE LAW OF THE SEA
(2004). A second edition is scheduled to be published by Brill. Also, a second edition of
Louis's Law of the Sea in a Nutshell, the first edition of which he coauthored in 1984 with
Kristen Gustafson [Juras), was recently published. LOUis B. SOHN, KRISTEN JURAS, JOHN E.
NOYES & ERIK FRANCKX, LAW OF THE SEA IN A NUTSHELL (2d ed. 2010).
2008] LOUIS B. SOHN 241

law and international legal institutions with enforcement powers

addressing common problems can help maintain international peace and
security-undergirds his coauthored book World Peace Through World
Law. 7 The start of that volume's redraft of the United Nations Charter
leaves untouched the Charter's essential purposes and principles: to
maintain international peace and security, including through collective
security measures; to bring about the peaceful settlement of disputes; to
develop friendly relations among states, based on respect for the equal
rights and self-determination of peoples; to cooperate in solving
international problems and encouraging respect for human rights and
fundamental freedoms. 8 These were the values that inspired Louis.
For Louis, the law of the sea did not constitute a distinct discipline,
divorced from other areas of international law or from the core values
that should underlie world order. One could, as he told me on several
occasions, find virtually every aspect of international law in the law of
the sea. We certainly see the law of the sea intersecting with many other
areas of international law in the 1982 Law of the Sea Convention. Its
treatment of marine pollution and the marine environment, for example,
reflected a progressive view of international environmental law. Louis
contributed to the 1972 Stockholm Conference on the Human
Environment and wrote a classic article about the Stockholm
Declaration. 9 That Declaration influenced UNCLOS III delegates and
helped to shape the environmental provisions of the Convention. 10
The law of the sea, in Louis's eyes, also took account of important
civil and economic human rights. Louis, who had left Poland in the
1930s in the face of the Nazi threat, worked on human rights issues even
before the U.N. Charter was adopted, as well as during post-Charter
codification efforts. 1 He spoke and wrote about how states must

7. GRENVILLE CLARK & LOUIS B. SOHN, WORLD PEACE THROUGH WORLD LAW
(1958) (2d ed. 1960) (3d ed. 1966).
8. See id. at 5-6; U.N. Charter art. 1.
9. Louis B. Sohn, The Stockholm Declaration on the Human Environment, 14 HARV.
INT'L L.J. 423 (1973).
10. See generally 1 THIRD UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA
OFFICIAL RECORDS 120-21, U.N. Sales No. E.75.V.3 (1973-1974); 2 THIRD UNITED NATIONS
CONFERENCE ON THE LAW OF THE SEA OFFICIAL RECORDS 311-35, U.N. Sales No. E.75.V.4
(1975) (containing numerous references to the Stockholm Conference and to the United
Nations Environment Programme, which was established in 1972 as one outcome of the
Conference).
11. See Louis B. Sohn, How American International Lawyers Prepared for the San
Francisco Bill of Rights, 89 AM. J. INT'L L. 540, 546-47 (1995); Jo M. Pasqualucci, Louis
Sohn: Grandfather of International Human Rights Law in the United States, 20 HUM. RTS. Q.
924 (1998).
242 WILLAMETTE J. INT'L L. & DISPUTE RESOLUTION [Vol. 16:238

respect human rights in their maritime practice. He addressed, for

example, the property rights of vessel owners, the prohibition on the
slave trade, and the rights of individuals aboard stateless vessels. 12
The law of the sea links to other fundamental aspects of
international law as well. The 1982 Law of the Sea Convention, in its
"peaceful purposes" clause, incorporates limits on the use of force found
in the U.N. Charter.13 Louis wrote about how the Convention, other
treaties, and customary international law respect and mediate the security
concerns of coastal states and flag states. 14 The Convention's dispute
settlement provisions also implement and refine the general Charter
obligation concerning the peaceful resolution of disputes.15
Far from regarding the law of the sea as addressing discrete
maritime issues, Louis recognized that the field was integrally linked to
international environmental law, human rights, the U.N. Charter, the law
related to national security, and the peaceful resolution of disputes. For
Louis, all these parts of international law should further the goal of a
more peaceful and just world. How are we to approach that goal? The
law of the sea-like these other parts of international law-was
something to be built. The next section of this essay explores Louis's
views about the nature of the positive law that could construct the law of
the sea.

IV. LOUIS SOHN AND THE MAKING OF THE MODERN LAW OF THE SEA

Louis Sohn believed that legal rules-rules that furthered the goal
of a more perfect world order-had to be created primarily through a
process to which states consented. Although Louis was a positivist, he
was impatient with traditional views about how states made law. He
believed that international institutions should play a major role in
developing law and regulating conduct.
Louis saw multilateral treaties, such as the Law of the Sea

12. Louis B. Sohn, InternationalLaw of the Sea and Human Rights Issues, in THE LAW
OF THE SEA: WHAT LIES AHEAD? 51 (Thomas A. Clingan, Jr. ed., 1988); Louis B. Sohn,
Peacetime Use of Force on the High Seas, in THE LAW OF NAVAL OPERATIONS (64
INTERNATIONAL LAW STUDIES) 38, 39-59 (Horace B. Robertson, Jr. ed., 1991).
13. LOS Convention, supra note 3, art. 88, at 301. See Bernard H. Oxman, The Regime
of Warships Under the United Nations Convention on the Law of the Sea, 24 VA. J. INT'L L.
809, 829-32 (1984).
14. See Louis B. Sohn, InternationalNavigation: Interests Related to National Security,
in INTERNATIONAL NAVIGATION: ROCKS AND SHOALS AHEAD? 307 (Jon M. Van Dyke,
Lewis M. Alexander & Joseph R. Morgan eds., 1988).
15. U.N. Charter arts. 2(3), 33; see LOS Convention, supra note 3, arts. 186-191, 279-
299, Annexes V-VIII.
2008] LOUIS B. SOHN 243

Convention, as essential to the formation of international law. Other

lawmaking mechanisms were too clumsy and uncertain. Multilateral
treaties, in historical context, replaced "a host of bilateral arrangements
that were both inefficient and costly."l 6 Furthermore, any significant
reliance on diplomatic state practice, to which earlier international
lawyers traditionally resorted for evidence about the content of rules of
customary international law, was impossible in the modern world.
International lawyers no longer
focus[] on what the various foreign ministries have been doing, singly
or through bilateral diplomatic correspondence .. .. [They] no longer
rely on a crisis producing an outpouring of statements from which a
principle of international law might be deduced. They no longer wait
for one of those great cases like the North Atlantic Coast Fisheries
Case in 1910, where twelve volumes of hitherto hidden documents
were presented to a tribunal of the Permanent Court of Arbitration, on
the basis of which the tribunal was able to announce some important
decisions concerning the existence of several rules of customary
international law. We can no longer rely on a scholar disappearing in
the archives of a particular State and after many years of research
producing a set of volumes on the international law practice of that
State.. . . Even if there still are scholars willing to do that, it is quite
clear that one's lifetime is not long enough to even scratch the surface
of the treasure troves hidden in the multiplying archives of many
17
nations.
A multilateral treaty such as the Law of the Sea Convention could
of course serve as treaty law. But in Louis's opinion, multilateral treaty-
making conferences could also lead to binding customary international
law. Modem multilateral treaties merged the functions of codification
and precise expression of existing law, on the one hand, with the
development of new principles of law, on the other, in ways that were
often hard to separate. In Louis's view, the consensus of states at
multilateral treaty-making conferences could provide the basis for
"instant" customary international law:
[O]nce a consensus is reached at an international conference, a rule of
customary international law can emerge without having to wait for the
signature of the convention. Once a convention is signed by a vast
majority of the international community, its stature as customary
international law is thereby strengthened, as such signatures are a clear

16. Louis B. Sohn, The Law of the Sea: Customary InternationalLaw Developments, 34
AM. U. L. REV. 271, 274 (1985) (referring to 1874 treaty establishing the Universal Postal
Union) [hereinafter Sohn, Customary].
17. Id. at 273-74.
244 WILLAMETTE J. INT'L L. & DISPUTE RESOLUTION [Vol. 16:238

evidence of an opinio juris that the convention contains generally

acceptable principles.
International law does not impose any formal restrictions on the
means by which States may express their common will. If in the last
decades of the twentieth century they should decide that consensus at
a conference plus a signature by a vast majority of the participants
creates a general norm of international law, this new method of
creating new principles and rules of international law would thereby
become a legitimate method of law creation. There is no rule of
international law preventing all States assembled in conference to
agree that a particular set of rules represents a satisfactory product of
"mutual accommodation, reasonableness and co-operation." In
addition, States may be willing to accept these rules as binding on
them from the very moment of their adoption.18
Writing less than two years after UNCLOS III ended, Louis drew on
these views to boldly conclude that "most of the provisions of the [Law
of the Sea] Convention [had] become customary international law."' 9
UNCLOS III was a good venue for the "legislative" process he
described, in that state delegates were centrally involved in negotiating
and developing the Convention. The delegates did not, for example, rely
on prior drafts prepared by the International Law Commission, as had
delegates to the 1958 Geneva law of the sea conventions. UNCLOS III's
consensus-based decision-making process facilitated state agreement on
legal rules.20
The July 1994 Part XI Implementation Agreement, 2 1 negotiated to
modify the Law of the Sea Convention's deep seabed mining regime,

18. Id. at 278-79 (quoting Fisheries Jurisdiction (U.K. v. Ice.), 1974 1.C.J. 3, 23 (July
25)). See also Louis B. Sohn, The 1982 Convention and Its Effect on the Development of
Customary International Law, in CENTER FOR OCEANS LAW AND POLICY THIRTEENTH
ANNUAL SEMINAR: CONTEMPORARY ISSUES IN UNITED STATES LAW OF THE SEA POLICY 28
(M.H. Nordquist ed., 1991); Louis B. Sohn, Conference Remarks, in id. at 32.
19. Sohn, Customary, supra note 16, at 280. Although the United States had not signed
the Convention, Louis believed that President Reagan's 1983 U.S. Ocean Policy Statement,
Mar. 10, 1983, 83 DEP'T ST. BULL. No. 2075, June 1983, at 70, "showed that the United States
has gone quite far in accepting all the provisions of the Law of the Sea Convention, except
those relating to deep seabed mining." Sohn, Customary, supra note 16, at 279. Louis would,
in positivist fashion, allow the "persistent objector" to opt out from a generally accepted rule.
Id. at 280. See also Louis B. Sohn, "Generally Accepted" InternationalRules, 61 WASH. L.
REV. 1073 (1986).
20. See ALAN BOYLE & CHRISTINE CHfNKIN, THE MAKING OF INTERNATIONAL LAW
148 (2007). See also Louis B. Sohn, Voting Proceduresin United Nations Conferencesfor the
Codification of InternationalLaw, 69 AM. J. INT'L L. 310 (1975).
21. Agreement Relating to the Implementation of Part XI of the United Nations
Convention on the Law of the Sea of 10 December 1982, July 28, 1994, 1836 U.N.T.S. 3
[hereinafter Part XI Implementation Agreement].
2008] LOUIS B. SOHN 245

further illustrated how modem international law could be made. In

Louis's view, this Agreement, which was to be interpreted and applied
together with the Convention as a single instrument, reflected a modem
process of lawmaking that relied on an overwhelming consensus in the
international community. He attributed this lawmaking process
''primarily to the tremendous increase in the last fifty years in the role
22
being played by international institutions and multipartite diplomacy."
[T]oday, there is a new dynamic mechanism, allowing the
international community to create new law directly by all nations
gathering around a conference table, and by patient negotiations, quiet
consultations and long public debate to agree on what the law should
be. It is a more democratic process than that of national parliaments,
as no decision can be dictated by a numerical majority to a minority;
nor can an obstinate minority forever block the will of a preponderant
majority. 23
In Louis's view, the negotiations leading to the Part XI Agreement
represented
an almost-unanimous consensus, including the preponderant majority
of each group represented in the consultations. An agreement reached
in such a way truly represents the opinion of mankind, and was likely
to be approved by the General Assembly in a unanimous vote. This
was not an instant legislative act, but a final result of a long,
deliberative process, taking all interests equitably into account, and by
persistence and ingenuity finding a solution for each apparently
intractable problem. While no state could dictate the adoption of all
its wishes, enough of them were accepted to make the final result
acceptable to all. Every state had an important stake in the final result,
and the final agreement was truly everybody's common intellectual
product.
This is the very best way of making international law, and the Law
of the Sea Convention as implemented by the new Agreement is an
excellent example of the vitality and viability of this new lawmaking
process.24
Louis also highlighted the fact that the 1994 Agreement required diverse
groups of states to approve it before it entered into force; and he noted

22. Louis B. Sohn, International Law Implications of the 1994 Agreement, 88 AM. J.
INT'L L. 696, 700 (1994).
23. Id. at 701.
24. Id. Louis added: "At the same time, it might be useful to point out that the
procedures used in preparing this Agreement and providing for its entry into force, its relation
to the Convention and its provisional application have been applied in the last fifty years in a
variety of circumstances, without being challenged as illegal." Id.
246 WILLAMETTE J. INT'L L. & DISPUTE RESOLUTION [Vol. 16:238

that, once in force, the Council of the International Seabed Authority

could act only by consensus or through other mechanisms requiring
broad support.25 Overall, the "new lawmaking process" was essential to
the widespread acceptance of the Agreement's rules.
Some of Louis's views were controversial. For example,
traditional positivists, looking for evidence of state practice plus opinio
juris to indicate acceptance of particular rules, disagreed with Louis that
treaty-making conferences could lead to instant customary international
law. Other scholars sounded cautionary notes, even though they believed
that modem lawmaking forums could provide increased transparency and
legitimacy for international law and contribute significantly to the
creation of universal international law.26 Professor Jonathan Charney
agreed that multilateral forums might "play a central role in the creation
and shaping of contemporary international law." 27 However, Charney
emphasized that the forums themselves do not have independent
legislative authority. 28 Rather, if certain features were present-if the
participants at the forum represented all interest groups, were aware they
were debating a legal norm, gave it widespread support, and objected
only to subsidiary issues29-then "the rapid and unquestionable entry
into force of normative rules" developed in the forum would be possible,
"if the support expressed in the forum was confirmed." 3 0 Confirmation
in practice would help ensure the efficacy of the new norms. Charney
also questioned whether particular new rules in the Law of the Sea
Convention wQuld necessarily become customary international law. The
Convention, which reflected "real state interests," was less likely to
represent new customary international law than an agreement addressing
"generalized interests and aspirations of the international community;" a
rule that resulted from negotiated trade-offs concerning other issues, as
did most Law of the Sea Convention rules, was "less appropriate for

25. Id. See Part XI Implementation Agreement, supra note 21, art. 6 & Annex, 3. The
1994 Agreement contained several other procedural features facilitating its acceptance and
application. For example, the Agreement applied provisionally before it entered into force.
Id. art. 7. Provisional application insured that the modified Part XI institutional provisions
were operating immediately upon the entry into force of the Law of the Sea Convention in
November 1994, and that no changes in the deep seabed-mining regime were necessary when
the Agreement itself entered into force in July 1996. The Part XI Agreement also included
several simplified options to facilitate its acceptance by states that had previously accepted the
Law of the Sea Convention. Id. art. 4(3).
26. See Jonathan I. Charney, UniversalInternationalLaw, 87 AM. J. INT'L L. 529 (1993).
27. Id. at 543.
28. Id. at 547.
29. Id. at 544-45.
30. Id. at 547.
2008] LOUIS B. SOHN 247

merger into customary law than a rule that resulted from a more
atomized negotiation;" a rule linked by political trade-offs to other
Convention rules would less likely "be considered as a customary rule
separated from the fabric of the agreement;" and a Convention rule
requiring "highly technical methods of implementation" might be
inappropriate for customary international law.3 1 In short, Louis
embraced international treaty-making conferences as lawmaking
mechanisms and concluded that most provisions of the Law of the Sea
Convention were customary international law, but his views provoked
controversy. Louis's positions did not conform to the traditional
positivist picture of how international law is made, and even some who
acknowledge that multilateral forums may contribute vitally to the
development of international law have expressed caution about Louis's
bolder conclusions.
Louis regarded international organizations as essential to the law
of the sea lawmaking process. The Law of the Sea Convention serves in
many respects as a framework agreement. A framework agreement
requires implementation. In modern international law, a variety of
mechanisms-conferences of the parties, or amendments (sometimes
adopted through a legislative majority or supermajority process), or
supplemental implementing agreements-may serve this purpose. Louis
spoke approvingly of Law of the Sea Convention mechanisms providing
lawmaking or implementation roles for international organizations: "[L]n
many respects this LOS Convention is just the beginning [for it] starts a
process of international legislation and might require, in many respects,
additional action later by various bodies-IMCO, FAO, environment
bodies, regional organizations, etc." 32 Louis stressed the "dynamic"
nature of the Convention's obligation that coastal states adopt and
enforce, at a minimum, "generally accepted" international anti-pollution
rules and standards. 33 "[T]he various special conventions on the
protection of the environment, . . . the more general provisions of the
Law of the Sea Convention, and .. . the special rule bringing all other
conventions, rules, and standards, whether past or future, under the wide

31. Jonathan 1. Charney, InternationalAgreements and the Development of Customary

InternationalLaw, 61 WASH. L. REv. 971, 983, 986 (1986).
32. Louis B. Sohn, Comments, in LAW OF THE SEA: CONFERENCE OUTCOMES AND
PROBLEMS OF IMPLEMENTATION 259, 264 (Edward Miles & John King Gamble, Jr. eds.,
1977) [hereinafter CONFERENCE OUTCOMES].
33. Louis B. Sohn, Implications of the Law of the Sea Convention Regarding the
Protection and Preservationof the Marine Environment, in THE DEVELOPING ORDER OF THE
OCEANS 103, 108-09 (Robert B. Krueger & Stefan A. Riesenfeld eds., 1985) [hereinafter
Sohn, Marine Environment]. See, e.g., LOS Convention, supra note 3, art. 211(2).
248 WILLAMETTE J. INT'L L. & DISPUTE RESOLUTION [Vol. 16:238

umbrella of the Law of the Sea Convention" combined to result in a

general, "universal[ly]" accepted "code of rules and standards for the
protection and preservation of the environment."3 4
For Louis, international courts and tribunals served particularly
important institutional functions. They helped fulfill the U.N. Charter
mandate of peaceful resolution of disputes. The Law of the Sea
Convention's innovative provisions concerning compulsory recourse to
binding third-party dispute settlement could help resolve disputes. The
dispute settlement bodies could, in addition, provide authoritative
interpretations of the Convention, clarifying the inevitable ambiguities
that resulted from negotiating compromises. Furthermore, Louis
argued that natural and juridical persons should, in certain circumstances,
have access to international tribunals to enforce their rights and clarify
their obligations under international law. 36 For Louis, the Convention's
dispute settlement provisions were short of ideal. For example,
individuals should have had increased access to tribunals.3 7 And
although Louis touted the "flexibility" of the Convention's complex
provisions-provisions that gave states a choice among numerous third-
party forums, with arbitration as the default forum, and that created a
separate set of options for deep seabed mining disputes-his own
preference would have been for a less "cumbersome" and "more
efficient" process. Yet Louis recognized that complex compromises
were the inevitable price to be paid for consensus on formal dispute
settlement at a multilateral conference such as UNCLOS III, and he
devoted himself to achieving consensus on a viable third-party dispute
settlement system. Louis contributed vitally to achieving agreement, late
in UNCLOS III, on the "hard-core" issue of how to treat maritime

34. Sohn, Marine Environment, supra note 33, at 106, 109.

35. See Louis B. Sohn, Peaceful Settlement ofInternationalDisputes in Ocean Conflicts:
Does UNCLOS III Point the Way?, 46 LAW & CONTEMP. PROBS., Spring 1983, at 195.
36. Louis B. Sohn, Problems of Dispute Settlement, in CONFERENCE OUTCOMES, supra
note 32, at 223, 230-31.
37. See Louis B. Sohn, Managing the Law of the Sea: Ambassador Pardo's Forgotten
Second Idea, 36 COLUM. J. TRANSNAT'L L. 285 (1998) [hereinafter Sohn, Pardo's Second
Idea].
38. Sohn, Comments, in CONFERENCE OUTCOMES, supra note 32, at 265 (questioning the
advisability of the Law of the Sea Convention's provisions for "special arbitration" involving
technical experts); see Louis B. Sohn, Settlement ofDisputes Relating to the Interpretationand
Application of Treaties, 150 RECUEIL DES COURS 195, 285 (1976) (Neth.) (although the
essential objective of providing "an authoritative, binding, precedent setting method of
common interpretation by an international body having the necessary prestige and trust" could
be "best achieved by providing a sole channel for [the] . . . interpretation of the [Law of the
Sea] Convention, such a solution would conflict with the [political] need to provide maximum
flexibility").
2008] LOUIS B. SOHN 249

boundary delimitation disputes, involving an innovative use of

compulsory conciliation.3 9
Although Louis worked with the international political and legal
system, he retained a vision of the ideal. How should we manage the law
of the sea? In one of his last articles, Managing the Law of the Sea:
Ambassador Pardo's Forgotten Second Idea,4 0 Louis explored that
fundamental question, highlighting the value of establishing new
international organizations with broad regulatory and enforcement
powers. Ambassador Pardo's "first idea," as students of the law of the
sea know well, was the notion that the seabed and subsoil beyond
national jurisdiction constituted the common heritage of humankind. 4 1
42
That idea was enshrined in Part XI of the Law of the Sea Convention.
Pardo's "second idea," however, was a Draft Ocean Space Treaty, 4 3
providing for International Ocean Space Institutions to manage and
develop ocean space as a whole, and to maintain law and order there.
These Institutions would accord greater decision-making weight to major
coastal states than to minor coastal states, and greater weight to coastal
states generally than to non-coastal states. Among the Institutions would
be an International Maritime Court with broad jurisdiction over the
Institutions and over natural and juridical persons, as well as over states,
concerning disputes relating to the oceans; those violating a decision of
the Court would be sanctioned.
In Louis's view, we cannot satisfactorily address the complex
problems facing the oceans merely by recognizing, as the Law of the Sea
Convention often does, limited functions of various "competent

39, See Informal Conf. Doc. NG7/20/Rev.1 (Aug. 25, 1978), in 9 THIRD UNITED
NATIONS CONFERENCE ON THE LAW OF THE SEA: DOCUMENTS 412 (Renate Platz6der ed.,
1986) (survey of possible approaches to settlement of sea boundary disputes); Informal Conf.
Doc. NG7/27 (Mar. 27, 1979), in id. at 438 (working paper prepared by Louis B. Sohn
regarding maritime bourdary disputes); Informal Conf. Doc. NG7/37 (Apr. 12, 1979), in id. at
457 (working paper prepared by Louis B. Sohn regarding maritime boundary disputes). For
the outcome of the compromises concerning maritime boundary delimitation disputes, see
LOS Convention, supra note 3, art. 298(1).
40. Sohn, Pardo'sSecond Idea, supra note 37.
41. Id. at 287.
42. LOS Convention, supra note 3, art. 136.
43. Draft ocean space treaty (Gov't of Malta, Working Paper, U.N. Doc. A/AC. 138/53
(1971)), reprinted in Report of the Committee on the Peaceful Uses of the Sea-Bed and the
Ocean Floor Beyond the Limits of NationalJurisdiction, U.N. GAOR, 26th Sess., Supp. No.
21, at 105-93, U.N. Doc. A/8421 (1971), and in STAFF OF SENATE COMM. ON INTERIOR AND
INSULAR AFFAIRS, REPORT ON THE UNITED NATIONS SEABED COMMITTEE, THE OUTER
CONTINENTAL SHELF AND MARINE MINERAL DEVELOPMENT 168 (Comm. Print 1971),
availableat
http://daccessdds.un.org/doc/UNDOC/GEN/N71/165/72/PDF/N7116572.pdfOpen Element.
250 WILLAMETTE J. INT'L L. & DISPUTE RESOLUTION [Vol. 16:238

international organizations."4 Nor can we properly manage these

problems by relying on the limited mandate of the International Seabed
Authority under the Law of the Sea Convention/Part XI Implementation
Agreement regime, or by requesting the U.N. Secretariat to carry out
advisory and assistance functions related to the law of the sea.45 The
Law of the Sea Convention, even with its roles for international
organizations and third-party tribunals, did not provide the optimum
solution. What was needed, according to Louis, was that "Pardo's wise
suggestion ... be fulfilled." 46 He hoped that "in the not-too-distant future
an umbrella institution will be established with sufficient powers to
supervise and coordinate the work of a plethora of specialized
international agencies and other institutions, and to regulate, supervise
and manage ocean activities to the extent required to preserve the oceans
for future generations." 4 7
This is idealism, indeed, but given the problems now plaguing the
oceans-massive pollution, dying coral reefs, collapsing fish stocks,
shrinking Arctic ice, and piracy to name just a few topics that have
captured the headlines recently--some bold thinking about new legal
solutions may be in order. Louis's idealism, revealed in his article about
Ambassador Pardo's "forgotten second idea," was always coupled with
concrete proposals about the law and institutions that could implement
his vision. Louis's review of Pardo's second idea thus provided a
roadmap for how we could-if we can muster the will and the
sense-get from our present situation to this new regime of Ocean Space
Institutions.48

V. CONCLUSION

Louis Sohn's efforts helped develop the modem law of the sea. At
UNCLOS III, in particular, his tenacity, his knowledge, and his
negotiating skill led to innovative and broadly applicable provisions for
compulsory recourse to third-party dispute settlement in the Law of the
Sea Convention. His broad vision and his specific proposals continue to

44. For a list, see Division for Ocean Affairs and the Law of the Sea, Office of Legal
Affairs, "Competent or relevant international organizations" under the United Nations
Convention on the Law of the Sea, in LAW SEA BULL. No. 31, at 79 (1996).
45. Sohn, Pardo'sSecond Idea, supra note 37.
46. Id. at 304.
47. Id.
48. See id. at 303-04 (noting the metamorphosis of the Conference on Security and
Cooperation in Europe operating under the Helsinki Final Act, and the transformation of the
General Agreement on Tariffs and Trade to the World Trade Organization).
2008] LOUIS B. SOHN 251

challenge us to devise better solutions for the problems affecting the

oceans.
Louis's insights about modern international lawmaking and
international institutions drew on his experience with the law of the sea,
his work with many other areas of international law, and his vast
knowledge of the history of international law. These insights, though
still controversial, have continuing relevance in debates over the sources
and legitimacy of international law.